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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.

 

 

Case Summary

Includes summaries of two Michigan Supreme Court orders under Criminal Law and Municipal/Tax.


Cases appear under the following practice areas:

  • Contracts (1)

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    e-Journal #: 74374
    Case: Centerpoint Owner, LLC v. Goulas
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Markey, and Gadola
    Issues:

    Breach of a lease contract; Scope of a guaranty; Contract interpretation; Rory v Continental Ins Co; Klapp v United Ins Group Agency, Inc; Ambiguity; Shay v Aldrich; “Breach” & “claim”; Attorney fees under the contract

    Summary:

    The court found that the language of the guaranty was clear and unambiguous as to when the 12-month period that defendant-Goulas was liable for unpaid rent began. Also, he was liable for attorney fees under the guaranty. But he was “not liable for attorney fees related to plaintiff’s eviction, conversion, or claim and delivery allegations; defendant is liable only for attorney fees related to enforcement of the guaranty: recovery of the improvement allowance and the 12-month rental period.” It was undisputed that defendant-Panos breached the lease. It also was “undisputed that defendant signed a personal guaranty for the lease between Panos and plaintiff.” Goulas argued that the guaranty only covered 12 months of rental obligations following Panos’s first breach of the lease in 12/14. The lease and guaranty failed to define the operative words—breach and claim—and thus, the court turned to contract interpretation principles to decide when the 12-month period began. It determined that Panos breached the lease in 12/14, but plaintiff’s claim did not occur “until it asserted its existing right to enforce the terms of the lease against Panos.” Panos breached the lease in 12/14 “when it failed to fully pay rent, but plaintiff did not assert a claim, i.e. take legal action to enforce the lease, at that time. Rather, plaintiff waited until Panos stopped paying rent altogether in” 3/16 before asserting a claim. While plaintiff could have brought action to enforce its rights earlier than 3/16, “it permissibly chose to wait until Panos stopped paying rent altogether before taking action to enforce its rights. Thus, ‘the date of Tenant’s breach of the Lease which gives rise to Landlord’s claim under this Guaranty’” was 3/16, the date of Panos’s breach of the lease ultimately resulting in plaintiff’s filing the case. As a result, “under the plain language of the guaranty, defendant must pay plaintiff an amount equal to the rental and other charges payable pursuant to the Lease with respect to the twelve (12) month period commencing” in 3/16. Affirmed in part, reversed in part, and remanded.

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  • Criminal Law (7)

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    e-Journal #: 74425
    Case: People v. Crystal
    Court: Michigan Supreme Court ( Order )
    Judges: Viviano, Zahra, Bernstein, Clement, and Cavanagh; Concurring in part, Dissenting in part – McCormack; Concurring in part, Dissenting in part - Markman
    Issues:

    Remand for resentencing before a different judge; People v Walker

    Summary:

    In an order in lieu of granting leave to appeal, the court vacated Part III of the Court of Appeals judgment (see e-Journal # 72694 in the 4/10/20 edition), which remanded the case for resentencing before a different judge. The court agreed with dissenting Judge Markey that “the Court of Appeals majority took the trial court judge’s remarks at sentencing out of context. The judge did not suggest that the defendant intended to cause the collision or the injuries suffered by the victims, but instead noted that the letters in support of the defendant referred to the offense as an ‘accident’ without recognizing that the defendant made the decision to drink alcohol and drive at speeds” over 90 mph. The record did “not indicate that the trial court judge would have substantial difficulty putting out of his mind previously expressed views or findings, and reassignment is not necessary to preserve the appearance of justice.” The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining question presented.

    Chief Justice McCormack concurred in the court’s denial of leave as to the reasonableness of defendant’s sentence, but dissented from the “decision to reverse the Court of Appeals’ remand for resentencing before a different judge[,]” concluding that the panel majority did not clearly err in determining that the factors articulated in Walker weighed in favor of the reassignment.

    Justice Markman concurred with the majority to the extent it found “that the Court of Appeals erred by holding that the resentencing it ordered should take place before a different judge[,]” but disagreed that leave to appeal should be denied as to whether resentencing was required. He believed “the Court of Appeals also erred by holding that the trial court failed to justify its” departure decision.

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    e-Journal #: 74390
    Case: People v. Eubanks
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Stephens, Servitto, and Letica
    Issues:

    Second-degree child abuse involving the parent’s commission of a reckless act; MCL 750.136b(3)(a); People v Murphy; MCL 750.136b(3)(b) (knowingly or intentionally committing an act likely to cause serious physical or mental harm to a child); People v Nix; A magistrate’s duty to determine witness credibility; People v Anderson; A magistrate’s ability to amend the charge at the conclusion of the preliminary exam; MCL 766.13; The law-of-the-case doctrine; Grievance Adm’r v Lopatin; Sufficiency of the evidence for a bindover; People v Head; “Omission”; MCL 750.136b(1)(c); Intent; People v Maynor

    Summary:

    Holding that the trial court erred by granting defendant’s motion to quash or reduce two second-degree child abuse charges and the accompanying felony-firearm charges, the court affirmed in part, reversed in part, and remanded. She was charged with multiple counts of second-degree child abuse and 2 counts of felony-firearm after her 3-year-old son shot 2 other 3-year-old children at her unlicensed family child care home. After prior appellate proceedings, the trial court ultimately issued a nunc pro tunc order dismissing all charges against defendant. In the present appeal, the court first found that the trial court “correctly decided that the law-of-the-case doctrine did not preclude later dismissal of the second-degree child abuse charges.” However, it agreed with the prosecution that the evidence presented at the preliminary exam was sufficient to support the district court’s bind over on second-degree child abuse charges under MCL 750.136b(3)(a). “Defendant accepted six children under the age of four into her unlicensed home daycare with knowledge that her husband kept unsecured, loaded weapons therein. Defendant knew that only one loaded gun was secured in her husband’s gun safe. Defendant deliberately chose not to know specifically where her husband had placed the remaining guns or ensure that the fully loaded, unsecured weapons were inaccessible to her young charges and her own young children.” She admitted she “knew her husband had placed unsecured guns in their bedroom’s dresser drawer, which was easily accessible to a toddler, on prior occasions.” She was also aware that their 3-year-old “was fascinated with guns.” She had warned her husband about the child’s interest in guns and that the child “was able to access that particular dresser drawer—one that contained two fully-loaded, unsecured handguns on the morning of the shooting.” Further, she knew the child “was upstairs in their bedroom with the other children without adult supervision at the time of the shooting.” This evidence showed that she “committed a reckless act that resulted in [the child’s] shooting and wounding the two other children.” Considering all of the evidence presented during the preliminary exam, a preponderance of the evidence supported two charges “under MCL 750.136b(3)(a) (reckless act) . . . .”

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    e-Journal #: 74357
    Case: People v. Kennedy
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Stephens, and Riordan
    Issues:

    Request for a DNA expert; Ake v Oklahoma; Moore v Kemp (11th Cir); Harmless error; People v Anderson (After Remand); Due process; Mathews v Eldridge

    Summary:

    On remand from the Michigan Supreme Court, the court held that the prosecution failed to meet its burden to show that the trial court’s failure to appoint the requested expert (Z) for the defense was harmless beyond a reasonable doubt. Thus, it reversed defendant’s murder conviction and remanded for a new trial. The court reiterated its determination in a prior appeal in the case that defendant’s motion to appoint Z met “the Moore reasonable probability standard, particularly in light of the limited discovery concerning the DNA evidence that had been provided to defense counsel” when the motion was filed. “Among other things, the motion informed the trial court of the nature of the prosecution’s case, the identity and background of the desired expert, how his appointment would be useful to the defense, and why counsel believed that it was necessary to ensure a fair trial. Moreover, given the highly technical, scientific nature of DNA evidence, that counsel indicated he would be unable to understand that evidence or to meaningfully cross-examine the prosecution’s experts concerning it without expert assistance, and that DNA evidence was the sole foundation of the charges” here, it appeared defendant showed “there was ‘a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.’” Reviewing the Mathews due process factors, the court noted the private interest at stake was “defendant’s liberty and his right to present a defense[,]” interests that “have been recognized as substantial.” Further, this was a DNA case, and he “could not safely proceed to trial without DNA expertise. Nearly two decades ago DNA evidence was collected from the victim, who was both strangled and sexually assaulted. It was only when that evidence was tested that defendant was charged with murder. The age and size of the DNA sample, its storage process and testing methodology were all likely issues of contention in this case. Trial counsel understood that this DNA evidence was the lynchpin of” the case. Z “was a former prosecutor who trained prosecutors on litigating forensic science issues in criminal cases.” The court found this case was like Ake, and that the failure to appoint Z was not harmless under the Anderson test.

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    e-Journal #: 74360
    Case: People v. Shaw
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Sawyer and Boonstra; Concurrence – Ronayne Krause
    Issues:

    Right of confrontation; Crawford v Washington; People v Garland; Hearsay; Whether statements were testimonial; Davis v Washington; Ineffective assistance of counsel; People v Rosa; Secretary of State (SOS)

    Summary:

    While the court concluded that defendant’s wife’s (Shaw) statements were testimonial under Davis, it held that he failed to show the alleged error in admitting them affected his substantial rights. It also rejected his claim that defense counsel was ineffective for not objecting to the prosecution’s questions about Shaw’s statements. Thus, it affirmed defendant’s convictions of OWI, third offense; reckless driving; and OWLS, second offense. He argued that his constitutional right to confrontation was violated when the prosecution questioned him and witness-S about Shaw’s statements to police when defendant was arrested. The court noted there was nothing in the record indicating “any continuing danger. Thus, Shaw was not speaking to the police to meet an ongoing emergency. Rather, Shaw’s statements recounted the events which led to defendant’s arrest. Thus, the primary purpose of Shaw’s statements to the police was to establish or prove the events that led to” the arrest. As a result, they were testimonial. Further, she “did not appear at trial, defendant did not have a prior opportunity to cross-examine her, and there was no evidence presented that Shaw was unavailable to testify. The prosecution did not assert that Shaw invoked spousal immunity or that her statements were admissible under any hearsay exception.” But the court found that defendant failed to establish his substantial rights were affected. Five witnesses “testified that there was only one person in the truck.” Two deputies testified that he exited “from the driver’s seat when he was pulled over.” In addition, he told another deputy (S) “that he ‘had to get out of there’ because ‘four or five guys’ started ‘beating him up.’ When defendant was arrested, he had a blood alcohol level of .078, and tested positive for cocaine and benzoylecgonine.” He admitted at trial that he was intoxicated before “his arrest and that, throughout the day, he snorted cocaine and consumed eight to nine, 16-ounce beers.” He, S, and another witness testified that he was sleeping in his truck before he was “arrested because he ‘had too much to drink.’” He also admitted that he drove with a suspended license. S “confirmed that defendant did not have a valid license in a” SOS database. Further, “the jury was instructed that the attorney’s questions and arguments are not substantive evidence.”

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    e-Journal #: 74417
    Case: People v. Soring
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Swartzle, Beckering, and Gleicher
    Issues:

    Prosecutorial misconduct; People v Dobek; Expert testimony; People v Christel; Prejudice; People v Unger; Ineffective assistance of counsel; People v Sabin (On Second Remand); Trial strategy; People v Rosa; Failure to make a futile objection; People v Ericksen; Consecutive sentencing; MCL 750.122(11); People v Norfleet

    Summary:

    The court held that the prosecution did not commit misconduct and defendant was not denied the effective assistance of counsel. However, remand was required for the trial court to fully articulate its reasons for ordering that defendant’s sentences be consecutive. It also instructed the trial court to correct what appeared to be a clerical error in the judgment of sentence. He was convicted of domestic violence, third-offense, and bribing, intimidating, or interfering with a witness arising out of his assault of his girlfriend. The trial court sentenced him as a fourth-offense habitual offender to consecutive sentences of 1 to 20 years for former and 1 to 15 for the latter. On appeal, the court rejected his argument that the prosecution committed misconduct by making improper remarks, and that his trial counsel was ineffective for failing to object to the remarks. “In light of the supportive lay testimony and the admitted jailhouse telephone calls between defendant and the victim demonstrating defendant’s behavior toward others, . . . the prosecutor’s remarks regarding ‘cycles of violence,’ defendant’s patterns of control, controlling behaviors, and irrational behavior, and about defendant’s drinking habits were amply supported by the evidence.” In addition, even if the prosecutor’s statement “about what she thought may have been happening was improper, in light of the evidence admitted, the court’s instructions, and our presumptions regarding the efficacy of the instructions and the diligence of the jury,” the court was “not persuaded that the complained of statement was outcome determinative.” To the extent the prosecutor “made any improper statements, they were not unduly prejudicial and did not affect defendant’s substantial rights . . . .” Further, even if defense counsel’s “failure to object constituted deficient performance,” the court could not say that, “but for this deficiency, there is a reasonable probability that the outcome of the trial would have been different.” Finally, however, it agreed with defendant that the trial court abused its discretion by making his sentences consecutive without explaining why. “Although the minimum sentences as recommended in the PSIR would have been the same as or higher than defendant’s ultimate sentence had the trial court selected and imposed them concurrently, the [trial] court failed to offer a particularized explanation for its decision to sentence defendant consecutively.” Affirmed in part, reversed in part, and remanded.

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    e-Journal #: 74427
    Case: Theriot v. Vashaw
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Griffin, Batchelder, and Murphy
    Issues:

    Habeas corpus; 28 USC § 2254; Procedural default; Maslonka v. Hoffner; Lovins v. Parker; Wheeler v. Simpson; Williams v. Bagley; Michigan requirements for preserving an issue for appellate review; People v. Bosca (MI App.); People v. Bulmer (MI App.); Enforcement of the procedural rule; Hinkle v. Randle; Michigan’s contemporaneous-objection rule as an adequate & independent state basis for foreclosing federal review; Taylor v. McKee; “Cause” & “actual prejudice” to overcome a procedural default; Lundgren v. Mitchell; Forfeiture; Williamson v. Recovery Ltd. P’ship; Johns v. Holder; Michigan’s abandonment rule as an adequate & independent state-law basis for prohibiting federal review; Marchbanks v. Jones (WD MI); Smith v. Wolfenbarger (ED MI)

    Summary:

    [This appeal was from the ED-MI.] The court held that petitioner-Theriot procedurally defaulted his right-to-present-a-defense claims and right-to-confrontation claim where he did not comply with Michigan’s procedural rules as to issue preservation and he failed to offer adequate cause or establish actual prejudice to excuse the defaults. He was convicted in a Michigan court of second-degree murder, AWIM, assault on a pregnant individual causing death to a fetus, and felony-firearm arising from a drive-by shooting. His state court appeals were unsuccessful, and the district court denied his habeas petition but granted a certificate of appealability. The court held that it was unnecessary to reach the merits of his claims because his claims were procedurally defaulted. It first concluded that he procedurally defaulted his right-to-present-a-defense claims where his objection in the state trial court was not based on the constitutional right to present a defense that he argued on appeal. The court noted that “the Michigan Court of Appeals reviewed petitioner’s right-to-present-a-defense claims for plain error because he did not preserve them,” and that “Michigan’s contemporaneous-objection rule ‘constitutes an adequate and independent state ground for foreclosing federal review.’” Moreover, Theriot failed to show cause or actual prejudice to permit review. The court also held that he procedurally defaulted his Confrontation Clause claim where “he did not comply with Michigan’s procedural rule that requires litigants to support their claims with sufficient argumentation[,]” and the state intermediate court actually enforced its procedural rule by ruling that this issue was “abandoned.” Affirmed.

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    e-Journal #: 74354
    Case: United States v. Miller
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Murphy, McKeague, and Kethledge
    Issues:

    Search & seizure; “Hash-value matching”; United States v. Ackerman (10th Cir.); The Fourth Amendment; Email scans by Google for child pornography; The private-search doctrine; Burdeau v. McDowell; United States v. Jacobsen; Walter v. United States; United States v. Lichtenberger; United States v. Reddick (5th Cir.); Whether Google’s actions could be attributed to the government; Lugar v. Edmondson Oil Co.; Romanski v. Detroit Entm't, L.L.C.; Public function; Manhattan Cmty. Access Corp. v. Halleck; Whether Google acted under compulsion; Blum v. Yaretsky; Skinner v. Railway Labor Executives’ Ass’n; Jackson v. Metropolitan Edison Co.; Effect of the reporting mandate; 18 USC § 2258A(f); United States v. Ringland (8th Cir.); United States v. Cameron (1st Cir.); Nexus to government actors; Rudd v. City of Norton Shores; Whether the detective's viewing of the files sent by Google violated defendant’s reasonable expectations of privacy; United States v. Warshak; Carpenter v. United States; The “trespass” approach; United States v. Jones; Admission of the National Center for Missing & Exploited Children’s (NCMEC’s) report & a CyberTipline report; Right of confrontation; Crawford v. Washington; Bullcoming v. New Mexico; Melendez-Diaz v. Massachusetts; Williams v. Illinois; Sufficiency of the evidence for defendant’s child-pornography convictions; Musacchio v. United States; Distinguishing United States v. Lowe

    Summary:

    The court affirmed defendant-Miller’s child-pornography convictions, holding that Google’s scanning of his Gmail files for hash-value matching did not constitute an unreasonable search under the Fourth Amendment. It also rejected his right of confrontation claims. This case involved a new method for combatting child pornography—hash-value matching. Google found files in a Gmail account that matched child pornography through this method and notified the NCMEC, which traced the account to Miller. He was convicted of knowingly receiving, distributing, or possessing child pornography. He argued that scanning his Gmail files for hash-value matching constituted an unreasonable search under the Fourth Amendment. But because the Fourth Amendment protects against unreasonable government searches and not against private-party (Google) searches, the court rejected this argument. He was unsuccessful in showing that Google’s actions could be attributed to the government. The court concluded that Google was not performing a governmental function, or acting under government compulsion. “Many courts have found that a ‘reporting requirement, standing alone, does not transform [a service provider] into a government agent whenever it chooses to scan files sent on its network for child pornography.’” Miller’s argument that the police detective (S) conducted an unreasonable search when he later opened the files sent by Google was also unsuccessful under the private-search doctrine. His argument that S violated his reasonable expectations of privacy failed under the doctrine where it was a “virtual certainty” that S’s “viewing of the files would disclose the same images that Google’s employees had already viewed.” The court also held that admission of a NCMEC report at trial did not violate Miller’s Sixth Amendment right of confrontation. There was no “human input.” It was NCMEC’s automated systems that entered the specific information into the report. “The rules of evidence, not the Sixth Amendment, govern the admissibility of this computer-generated information.” Finally, the court held that there was sufficient evidence to support his convictions.

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  • Insurance (1)

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    e-Journal #: 74363
    Case: El-Achkar v. Sentinel Ins. Co., Ltd.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Riordan, and Tukel
    Issues:

    Validity of a policy rescission; Bazzi v Sentinel Ins Co (Bazzi I & II); Mendelson Orthopedics PC v Everest Nat’l Ins Co; Balancing of the equities between an injured third party & the insurer; Pioneer State Mut Ins Co v Wright; Farm Bureau Gen Ins Co of MI v ACE Am Ins Co; Effect of eligibility to recover through the Michigan Assigned Claims Plan (MACP)/Michigan Automobile Insurance Placement Facility (MAIPF); Belcher v Aetna Cas & Sur Co; Spectrum Health Hosp v Michigan Assigned Claims Plan

    Summary:

    The court held that the trial court did not abuse its discretion when it denied defendant-Sentinel’s motion to rescind the policy at issue because Sentinel did not show it was entitled to rescission based on a balancing of the equities as between itself and plaintiff-El-Achkar. Thus, the court affirmed the order requiring Sentinel to reimburse defendant-Citizens Insurance the amount it paid El-Achkar to settle his claims for no-fault benefits. El-Achkar was a passenger in a vehicle driven by his friend (A) when they were injured in an auto accident. A was a plaintiff in Bazzi I and II. The court found that application of the five-factor test set forth by Justice Markman in his concurrence in Farm Bureau supported the trial court’s ruling in this case. “The trial court properly considered the equities as between Sentinel and El-Achkar and correctly ruled that Sentinel failed to carry its burden of establishing the right to rescind the policy as between Sentinel and El-Achkar.” The court concluded that the first factor did not weight for or against rescission “because the perpetrators of the fraud may have concealed their subterfuge from Sentinel . . . .” The second factor weighed against rescission because El-Achkar did not have a familial relationship with any of A’s “family and knew nothing about the procurement of the” policy. The third factor also weighed against rescission as El-Achkar was a passenger “and lacked control over the ensuing events including the crash . . . .” The fourth factor likewise weighed against rescission because he could not claim no-fault benefits under another policy. Sentinel argued that he was entitled to recover through the MACP/ MAIPF and that this should be considered in balancing the equities. But Belcher and Spectrum Health made it “clear that the MACP provides coverage as a last resort.” Thus, the court concluded that the fact “an injured third person can seek PIP benefits from the MACP as a last resort should not and cannot be factored into the equities balancing test’s fourth-factor inquiry . . . .” Finally, the fifth factor also weighed against rescission because it was doubtful El-Achkar would obtain any relief even if he sued A and the LLC that was the insured on the policy. The court further concluded that the trial court correctly rejected Sentinel’s proposed two-factor test “because it completely fails to take into consideration any of the equities as related to El-Achkar, the injured third party.”

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  • Municipal (1)

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    This summary also appears under Tax

    e-Journal #: 74426
    Case: Binns v. City of Detroit
    Court: Michigan Supreme Court ( Order )
    Judges: McCormack, Viviano, Markman, Bernstein, Clement, and Cavanagh; Concurrence – Zahra
    Issues:

    Whether a drainage charge assessed by a city against property owners is a “tax” or a “user fee”; Detroit Alliance Against the Rain Tax v City of Detroit (DAART); Bolt v City of Lansing; Const. 1963, art. 9, § 31

    Summary:

    In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 69011 in the 11/14/18 edition) and remanded the case to the Court of Appeals with instructions to refer the case (while retaining jurisdiction) to a judicial circuit for proceedings under MCR 7.206(E)(3)(d). The court had held the application for leave to appeal in abeyance pending its decision in DAART (see e-Journal # 74421 in the 12/17/20 edition for the order in that case).

    Concurring, Justice Zahra observed “that the fact-finding process under MCR 7.206(E)(3)(d) that will take place in this case and which will subsequently be applied in DAART is critical to reaching a sound result under” Bolt. He found the second factor of Bolt’s three-factor test of particular importance here, noting that it was “at best unclear to me how the City’s drainage charge is best classified as a user fee rather than as a tax . . . .”

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  • Real Property (1)

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    e-Journal #: 74398
    Case: Fowle v. Dushane
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Riordan, and Cameron
    Issues:

    Driveway easement dispute; Whether a new land survey was necessary; Abandoned issue; Innovation Ventures v Liquid Mfg

    Summary:

    Holding that the trial court did not err when it declined to order plaintiffs-the Fowles to obtain a new land survey to mark the boundaries of the easement, the court affirmed the trial court’s order denying defendant-Dushane’s motion to enforce a prior judgment and to direct the Fowles to pay for a land survey to properly mark the boundaries of their easement on Dushane’s property. On appeal, Dushane argued that “a new land survey was necessary because the original legal description of the easement was invalidated, and the parties are unable to ascertain the actual physical boundaries of the easement.” The court held that his argument was abandoned because he failed to support it on appeal with any legal authority. Further, the court failed to see how a new survey to mark the boundaries of the easement was required. “During the bench trial, detailed drawings of the dimensions of the easement were introduced into evidence; the drawings depicted the parties’ use of the easement following the entry of the 1989 consent judgment. After the bench trial, the trial court held that ‘[t]he proofs presented at trial establish the Fowles have met all of the requirements to establish a prescriptive easement over the disputed wedge of the property.’” Although the court determined in Fowle I that “the trial court improperly concluded that an easement by prescription was created, this [c]ourt affirmed the trial court’s ultimate conclusion that the boundaries of the easement, as described in the 1989 consent judgment, were modified by the parties’ conduct.”

    Full Text Opinion

  • Tax (2)

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 74426
    Case: Binns v. City of Detroit
    Court: Michigan Supreme Court ( Order )
    Judges: McCormack, Viviano, Markman, Bernstein, Clement, and Cavanagh; Concurrence – Zahra
    Issues:

    Whether a drainage charge assessed by a city against property owners is a “tax” or a “user fee”; Detroit Alliance Against the Rain Tax v City of Detroit (DAART); Bolt v City of Lansing; Const. 1963, art. 9, § 31

    Summary:

    In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 69011 in the 11/14/18 edition) and remanded the case to the Court of Appeals with instructions to refer the case (while retaining jurisdiction) to a judicial circuit for proceedings under MCR 7.206(E)(3)(d). The court had held the application for leave to appeal in abeyance pending its decision in DAART (see e-Journal # 74421 in the 12/17/20 edition for the order in that case).

    Concurring, Justice Zahra observed “that the fact-finding process under MCR 7.206(E)(3)(d) that will take place in this case and which will subsequently be applied in DAART is critical to reaching a sound result under” Bolt. He found the second factor of Bolt’s three-factor test of particular importance here, noting that it was “at best unclear to me how the City’s drainage charge is best classified as a user fee rather than as a tax . . . .”

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    e-Journal #: 74365
    Case: Daoud v. Department of Treasury
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Riordan, and Tukel
    Issues:

    Corporate officer tax liability; MCL 205.27a(5); Shotwell v Department of Treasury; Whether petitioner was a “responsible person” liable for taxes under the statute; “Period of default” & “willful”; MCL 205.27a(15)(c)-(d); Whether the Operating & Management Agreements rebutted respondent’s evidence that petitioner had control over the LLC’s tax payments; Whether the Tax Tribunal (TT) properly considered petitioner’s signature on the Registration of Michigan Taxes form & his signature on the power of attorney for establishing a prima facie case; MCL 205.27a(15)(b); The willfulness requirement; Valentino v. Department of Treasury (TT)

    Summary:

    Concluding that the TT properly held that petitioner was a “responsible person” and liable for taxes under the statute governing corporate officer tax liability, the court affirmed. His brother (non-party Sam) sought to open a bar and restaurant but he was ineligible to receive a liquor license. Petitioner agreed to title it in his name, applied for the liquor license, and formed an LLC (TK). He argued that the TT committed reversible error when it held that he was liable for taxes pursuant to MCL 205.27a(5). But the evidence respondent submitted reflected that he “controlled, supervised, and was responsible for the payment of TK’s taxes during the time period at issue. Petitioner filed TK’s Articles of Organization listing himself as sole member of the LLC, registered TK for Michigan sales and withholding taxes, signed the form as TK’s ‘president,’ and executed a power of attorney effective during the default period which allowed a third party to review TK’s records for tax purposes[.] Petitioner also executed TK’s Operating Agreement, under which petitioner was listed as the sole member with 100 percent interest in TK’s assets.” In his capacity as sole member, he “entered into a Management Agreement, in which he directed TK’s manager, Sam, to file and pay TK’s taxes. In the event Sam failed to do so, petitioner retained the right to terminate the Agreement.” All of these actions reflected “petitioner’s position as sole member of the LLC holding responsibility over all of TK’s activities.” There was sufficient competent evidence to support the TT’s finding that he “maintained supervision, control, and responsibility over TK’s tax matters during the default period.” On appeal, he argued that the Operating and Management Agreements rebutted “respondent’s evidence that petitioner had control over TK’s tax payments because” they showed that he “contractually delegated his authority to Sam to manage TK’s operations, including filing and payment of taxes, thereby constraining petitioner’s authority to control, supervise, or be responsible for TK’s taxes.” However, petitioner did “not cite any legal authority that a corporate officer’s broad delegation of authority to a subordinate divests that officer of their corporate authority or responsibilities concerning tax payments. Rather, our jurisprudence suggests the contrary conclusion: that a corporate officer with supervisory powers over tax payments cannot escape personal liability for the LLC’s unpaid taxes by delegating those tax duties to a third party.”

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  • Termination of Parental Rights (2)

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    e-Journal #: 74414
    Case: In re Stewart
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Murray, K.F. Kelly, and Stephens
    Issues:

    Termination under §§ 19b(3)(i) & (j); Use of speakerphones for testimony in child protection proceedings; MCR 3.923(E); Authentication/identification of a witness; MRE 901(a) & (b)(5); Right of confrontation in child protective proceedings; In re Brock; Harmless error; People v Solomon; Reasonable reunification efforts; MCL 712A.19a(2)(c); In re Rood; In re Fried; Best interests of the child; MCL 712A.19b(5); In re Olive/Metts Minors

    Summary:

    The court held that the admission of a social worker’s (L) testimony by speakerphone was proper, that the DHHS made reasonable reunification efforts, that §§ (i) & (j) were met, and that termination was in the child’s best interests. Thus, it affirmed termination of respondent-mother’s parental rights. Her rights were terminated on the basis that her parental rights to four siblings were previously terminated, and that there was a reasonable likelihood the child would be harmed if returned to her care. On appeal, the court rejected her argument that the trial court erred by allowing L to testify by speakerphone. It noted the trial court properly found L’s voice authenticated under MRE 901(b)(5), and thus, did not abuse its discretion. In addition, the trial court did not err by failing to “sua sponte bar the testimony on the ground that it violated respondent’s right to confront a witness against her.” Further, any error in the admission of the testimony was not outcome-determinative. As to reasonable reunification efforts, the evidence showed “that while there was no obligation to do so, and even in the face of a petition seeking termination at the initial disposition, [the DHHS] continued to make extraordinary efforts to assist respondent in addressing the barriers to reunification. Despite these efforts, respondent failed to participate in and benefit from the services offered.” It next rejected her contention that the DHHS failed to prove a statutory ground for termination. “There was overwhelming evidence that respondent, either because she was unwilling or unable, had not adequately addressed her mental health issues, had not improved her parenting skills, and still was unable to obtain and maintain suitable and stable housing.” And respondent “candidly admitted that she was afraid she might hurt her child.” Finally, as to the child’s best interests, “it was clear that [the child] would not be safe in respondent’s care. Moreover, there was no significant parent-child bond given that the child was removed shortly after birth and, respondent’s lack of attendance and engagement at parenting time.” By contrast, the child “was thriving in a stable foster home where his needs were being met.” He was placed in the adoptive home of two of his biological siblings, “and the foster mother had expressed an interest in adopting” him as well. “Termination was the best avenue for the child to achieve stability, permanence, and finality.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 74405
    Case: In re Vannatter/Cooper
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Murray, K.F. Kelly, and Stephens
    Issues:

    Termination under § 19b(3)(c)(i); In re Gonzales/Martinez; Reasonable reunification efforts; MCL 712A.18f(3)(b) & (c); MCL 712A.19a(2); In re Hicks/Brown; Accommodation of a disability under the Americans with Disabilities Act (ADA) (42 USC § 12101 et seq); In re Frey; Best interests of the children; In re Olive/Metts Minors; In re White; In re Schadler

    Summary:

    Holding that the DHHS made reasonable reunification efforts, that at least one statutory ground was met, and that termination was in the children’s best interests, the court affirmed termination of respondents-parents’ parental rights. Their parental rights were terminated based on the fact that the children were sexually abusing each other, and that the parents were improperly supervising and physically abusing them. On appeal, the court rejected the father’s argument that the DHHS did not make reasonable reunification efforts because it failed to accommodate his disability under the ADA. “[T]he record indicates that the DHHS accommodated” his disability, and that although the DHHS provided him “services that accommodated his disability, [he] failed to fully participate in services.” The court also rejected respondents’ claim that the DHHS failed to prove a statutory ground for termination, noting that “because this case was ongoing for over 182 days,” and they were “not likely to make any progress within a reasonable time considering the children’s ages,” the trial court did not err by finding that termination was proper under § (c)(i). Finally, it rejected the mother’s contention that termination was not in the children’s best interests. It noted the trial court did not err by finding there was no appropriate family placement for the children, and that it properly considered and weighed her participation in her service plan, and their need for permanency, stability, and finality in favor of termination. Moreover, “the children’s placements provided them the safe and stable environment” they needed, and consideration of any bond she had with the children “would have weighed in favor of termination.”

    Full Text Opinion

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